Issue: Results from the Safety and Justice Challenge Network

Report

Diversion Incarceration Trends Probation Sanctions January 12, 2023

Probation Violations as Drivers of Jail Incarceration in St. Louis County, Missouri

Beth M. Huebner, Lee Ann Slocum, Andrea Giuffre, Kimberly Kras, and Bobby Boxerman

Many have argued that we are in the era of mass probation, as more people are under probation supervision than under any other correctional sanction. Although there have been declines in the national probation population over the past decade, one in 84 adult US residents is currently on probation. Nationwide, local jail populations have also grown—from 184,000 in 1980 to 741,900 in 2019. The increased use of probation inflates the population at risk of subsequent confinement in jail or prison. Individuals who violate their probation, in some states, are detained in jail and await a hearing. Despite the growth in probation revocations and the increased use of jail stays as a response to technical violations, however, there is little evidence to suggest that short-term stays of incarceration reduce recidivism.

Adding to the growing rate of probation is the problem of racial disparity in incarceration. People of color are disproportionately represented among the probation population. In 2018, Black people represented 30% of the US probation population, twice their proportion in the national population. Further, almost half of all young Black men (24 to 32 years old) with no high school degree reported having been on probation at some point. Black individuals, particularly young men, are also more likely than White individuals to struggle on probation and to be given multiple conditions of supervision. Although there is evidence that Black individuals are more likely to have their probation revoked, less is known about how revocation to jail influences trajectories and outcomes for this group.

Jail stays also have deleterious effects in the short and long term. For example, Harding and colleagues found that short terms of jail incarceration resulting from technical violations suppressed the earnings of individuals by about 13% in the nine months after release from custody. The churn of multiple jail stays, even if short in length, also causes strain and instability among families, leaving them feeling hopeless under the constant eye of supervision. Yet, the unique needs of jail populations overall, and those of individuals who violate probation terms, are rarely considered in correctional reforms.

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Report

Diversion Featured Jurisdictions Plea Bargains November 29, 2022

An Exploration of Prosecutorial Discretion in Plea Bargaining in Philadelphia

Andreea Matei, Lily Robin, Kelly Roberts Freeman, and Leigh Courtney

As we have come to reckon with our nation's overreliance on carceral punishment and the mass incarceration of people of color, particularly Black people, experts are turning to a key system point that is the primary method for resolving most criminal cases: plea bargaining. Plea bargaining involves negotiation between a prosecutor and, often, a defense provider on behalf of their client. Prosecutors hold a lot of discretion over how to proceed regarding plea bargains, including whether to offer a plea agreement, when to do so, and what they wish to offer. Despite the wide use of plea bargaining, little is known about the practice, largely because it happens outside of public view and little is documented by the key actors involved—prosecutors.

To better understand prosecutorial discretion in plea bargaining, the Urban Institute was funded by the MacArthur Foundation through the Safety and Justice Challenge (SJC) Research Consortium, which is managed by the CUNY Institute for State and Local Governance (ISLG), to conduct a study on plea bargaining policies, practices, and outcomes. The Philadelphia District Attorney's Office (DAO) agreed to partner with Urban to shed light on the inner workings of plea negotiations and how they are viewed by different parties involved in the process, including attorneys and people who accept pleas. The DAO's partnership provided a rare opportunity to learn more about prosecutorial decisionmaking in plea bargaining in a single office and how this could inform policy and practice more broadly. This unparalleled look into prosecutorial decisionmaking owes to the forthrightness of the assistant district attorneys (ADAs) we interviewed and surveyed. The DAO's cooperation made it possible for Urban's research team to read policies on plea offers, analyze a deidentified sample of the office's case files, and hear from the ADAs to learn more about their decisionmaking during plea negotiations. Notably, this report is an exploration of discretion in plea bargaining in one office, not an impact evaluation of policies.

In this report, we discuss findings from our exploratory single-site study, in which we used qualitative and quantitative data to answer research questions of interest. Our activities included a policy review; analysis of administrative data from 2018 to 2021; interviews with 11 Philadelphia ADAs, 9 defense providers, and 5 people who accepted pleas; a case file review of 115 cases; and a survey of 65 ADAs. Because prosecutorial discretion in plea bargaining is not well documented in data, the best way to learn about discretion is by speaking with prosecutors; thus, this report focuses primarily on our qualitative findings. We organized our findings by three main topics: policies and goals of plea bargaining, trends in plea offers and outcomes, and decisionmaking and perceptions of key actors. We end the report with a discussion of policy implications.

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Report

Diversion Plea Bargains Racial Disparities November 29, 2022

Exploring Plea Negotiation Processes and Outcomes in Milwaukee and St. Louis County

Don Stemen, Beth M. Huebner, Marisa Omori, Elizabeth Webster, Alessandra Early, and Luis Torres

Although guilty pleas are the modal method for criminal case resolution in the US, relatively little attention has been paid to the plea negotiation process. Research suggests that prosecutors drive plea decision-making; however, the decision process is largely hidden and informal. Consequently, little is known about the role that prosecutors and other criminal justice actors play across the process, and even less is known about how these mechanisms have changed over time, particularly during the COVID-19 pandemic. Unpacking these plea negotiation decisions are especially key to understanding racial and ethnic disparities in criminal case processing.

Funded as part of the John D. and Catherine T. MacArthur Foundation's Safety and Justice Challenge Research Consortium, the current study considers guilty plea negotiation processes and outcomes in Milwaukee County, Wisconsin, and St. Louis County, Missouri. Both offices are currently lead by reform-oriented attorneys, are are medium-sized offices serving urban and suburban jurisdictions. Over the long tenure of elected District Attorney John Chisholm in Milwaukee, the office has implemented innovative prosecution models such as community prosecution units and diversion programs. In St Louis, recently elected District Attorney Wesley Bell is the first Black person to hold the office, and he ran on a platform of ensuring equity in the system and reducing mass incarceration. The goal of the study is to explore how prosecutors and other court actors approach and make decisions surrounding the plea negotiation process, in addition to, investigating the factors that affect plea outcomes. The data used in this report include narratives from interviews with and surveys of local stakeholders including prosecutors, public defenders, judges, private attorneys, and system-involved persons. The report also centers on administrative data collected through agencies' case management systems for criminal cases filed in Milwaukee and St. Louis Counties through 2020.

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Report

Diversion Featured Jurisdictions Plea Bargains Pretrial Services July 27, 2022

Reject or Dismiss? A Prosecutor’s Dilemma

Florida State University, Loyola University Chicago

One of the key decisions that prosecutors make is whether or not to file charges against a defendant. Depending on the office, this decision point may be called initial case assessment, screening, review, or filing. Prosecutors, or in some instances paralegals, review evidence provided by law enforcement and decide whether to file any charges in each case.

The core purpose of case screening is to identify and eliminate cases that cannot or should not be prosecuted. In other words, prosecutors have the difficult task of assessing limited case facts in front of them and rejecting cases 1) that do not involve enough evidence to support a conviction, and 2) for which prosecution would not be in the best interest of justice and victims. The decision to reject a case is highly consequential because it means that the defendant will avoid formal charges and conviction.

Cases can also be dismissed after they are filed. While judges can dismiss cases— due, e.g., to missing case processing deadlines or 4th amendment violations—most dismissal decisions are made by prosecutors. Cases may be dismissed by a prosecutor due to evidentiary issues (including victim or witness cooperation) or plea negotiations in other cases, for example.

PPI 2.1 examines the relationship between these two highly discretionary case outcomes: case rejection and case dismissal. While there is no agreed-upon standard for what proportion of referred cases should be rejected for prosecution, or what proportion of filed cases should be dismissed, we suspect that these proportions will vary across jurisdictions and by offense types.

Local criminal justice systems should enable prosecutors to identify dismissible cases as early as possible. Eliminating dismissible cases at the screening stage reduces negative consequences for defendants, victims, and the criminal justice system. For defendants, the declination of dismissible cases reduces unnecessary pretrial detention, disturbances to family life and employment, and chances of wrongful conviction. For victims, identifying dismissible cases at filing minimizes the burden of involvement in the criminal justice system and avoids false expectations, though in some cases prosecution may provide victims with temporary protections they need. For the criminal justice apparatus, declining dismissible cases reduces caseloads and criminal justice expenditure.

In this report, we provide a rare compilation of data on screening and dismissal decisions from jurisdictions across the country. We explore case rejection and dismissal trends in 15 prosecutor’s offices before drilling down in these two important outcomes to examine variations across defendant race and offense type in select jurisdictions.

While reading this report, let’s keep in mind that there are marked jurisdictional differences that influence screening and dismissal decisions. For example, New York prosecutors typically have two days to file a case, while Florida allots several weeks for this decision. Furthermore, jurisdictions have adopted different COVID-19 regulations: some closed certain court operations for months, while others remained open. Yet others quickly moved operations virtually, as is still the case in Hennepin County. Lastly, what is counted as a rejection or dismissal may vary across jurisdictions: a dismissal in the interest of justice in Philadelphia might have been labeled a deferred prosecution in Milwaukee and therefore excluded from dismissal rate calculations. Given these differences, we encourage cross-site learning about rejection and dismissal practices, but not direct comparison.

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Publication

Bail Community Engagement Crime Data Analysis Featured Jurisdictions Human Toll of Jail Jail Populations Pretrial and Bail Pretrial and Jails Pretrial Justice Pretrial Services Racial Disparities July 1, 2022

Expanding Supervised Release in New York City

Safety and Justice Challenge, Center for Court Innovation

In 2015, the John D. and Catherine T. MacArthur Foundation launched the Safety and Justice Challenge (SJC), a multi-year initiative to reduce populations and racial disparities in American jails. To advance knowledge development grounded in a research agenda that explores, evaluates, and documents site-specific strategies to safely and effectively reduce jail populations and address racial and ethnic disparities, the Foundation engaged the Institute for State & Local Governance (ISLG) at the City University of New York (CUNY) to establish and oversee an SJC Research Consortium. Consortium members are nationally renowned research, policy, and academic organizations collaborating with SJC sites to build an evidence base focused on pretrial reform efforts.

Under New York City’s Supervised Release Program (SRP) individuals awaiting trial are released under community supervision to ensure their return to court, instead of via bail or pretrial detention. Defendants are eligible for the citywide SRP if they meet specific criteria, including arrest charge type, estimated risk status, and community ties. Towards the goal of reducing the jail population, New York City expanded the City’s Supervised Release Program (SRP) several times by altering the eligibility criteria to include a wider range of individuals. The first large expansion of SRP since 2016 occurred at the beginning of June 2019. A subsequent program expansion occurred in December 2019 as New York State prepared for 2020 bail reform legislation to go into effect.

In an effort to better understand the impact of expansion of SRP as a jail-reduction strategy, ISLG and the SJC Research Consortium funded the Center for Court Innovation to examine the impact of the June 2019 expansion. The Center conducted a time series analysis to determine if observed post-expansion SRP enrollment and/or detention rates significantly differed from predicted rates. The study found that the expansion increased SRP rates across racial groups and reduced detention for non-violent felony offenses, though not for misdemeanor offenses. In addition, the findings show increased use of SRP for misdemeanor offenses, which may suggest net-widening.

Key takeaways:

1. Increasing program participation does not always decrease detention. For small program expansions (like the 2019 expansion) to have a true impact on detention, these initiatives must target serious crimes that are likely to be detained.

2. Large changes are needed for large impact. Larger expansions, especially those that are driven by legislative change (like the December 2019 expansion in preparation for bail reform), can have a greater impact on detention compared to smaller expansions.

3. Targeted efforts to reduce racial disparities are necessary. Disparities are not automatically impacted by increasing program participation and decreasing detention across the board. To reduce racial disparities, targeted efforts must be made.

Together, the findings suggest that the SRP expansion reduced detention for some offenses and highlight the importance of measuring the impact of program implementation and expansion to inform future work and jail reduction efforts in New York City and other jurisdictions.

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